A tenant slipped and fell on wet toilet floor in May 2011, as a result of a ceiling leak that had been identified months earlier during the managing agent’s pre-tenancy inspection of the Morningside Queenslander .
As commonly occurs, she took aim at both the owner and the managing agent for the neglect that she alleged was the cause of her misfortune.
Once contacted by Total Property Managment, owner Michelle Fitzpatrick immediately authorised a quote for repairs which was delayed by almost 2 months because Total agent Tahnee Loring “could not get in contact with the tenants”.
Fitzpatrick immediately authorised repairs on receipt of the quote but just two days earlier, tenant Jessica Page had been victim of the slippery floor.
Her claim was resolved by insurers for Total and Fitzpatrick but agent Crown faced a $5k deductible.
To recoup its expense, it brought a fresh claim against Fitzpatrick under the indemnity contained in clause 11 of its agency appointment which specified:
the lessor indemnifies the agent and must pay for all liability, loss or costs the agent suffers incurs from wall actions, claims, demands, damages and expenses arising out of or in respect of its capacity as agent of the lessor.
QCAT member John Bertelsen was of the view that the claim was not one within its jurisdiction because it was not a “liquidated” debt but more in the nature of damages.
Regardless though, he ruled that even had that not been the case, the fact that Total and Fitzpatrick agreed to a settlement in relation to Ms Page’s District Court action, their rights as between each other in respect of the incident had been finalised “once and for all”.
It was “not good enough after the event and say there is now a further adjustment to be made”.